The Applicability of traditional dispute resolution mechanisms in criminal cases in Kenya

Submitted in partial fulfillment of the requirements of the Bachelor of Laws Degree at Strathmore University Law SchoolBefore the advent of colonialism, Africans had their own mechanisms of dispute resolution which were based on the customary law applicable at the time. These mechanisms, otherwise referred to as traditional dispute resolution mechanisms (TDRMs), had provisions for all kinds of disputes arising including those of a criminal nature. Colonialism resulted in the importation of laws from other jurisdictions, particularly England, specifically through the reception clause. Pursuant to the repugnancy clause, customary law could only be used to the extent that it was consistent with written law and was not repugnant to justice and morality. Article 159 of the Constitution of Kenya (2010) states that in discharging its mandate the judiciary has an obligation to promote Alternative Dispute Resolution Mechanisms, under which it specifically mentions TDRMs. The objective of this study is to establish whether TDRMs are currently applicable in criminal cases in Kenya, and if establish the scope of their application. Chapter 1 lays the background, states the objectives and explains the theoretical framework of this study. Chapter 2 looks into the historical development of TDRMs in Kenya as it pertains to the resolution of criminal disputes. In answering the question as to whether TDRMs are applicable in criminal matters, chapter 3 examines the various enabling constitutional and statutory provisions as well as the jurisprudence that has been developed by the court on the same. Chapter 4 seeks to address the question of the extent of TDRMs in criminal cases; whether it can be used for both felonies and misdemeanours, at what point it can be invoked during a trial and which parties should be involved in the course of resolving disputes through TDRMs. Chapter 5 explains the findings of this study then goes ahead to make the conclusions and recommendations